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Scottish Court of Session Decisions >>
Joseph Cauvin, v Dr Joseph Robertson. [1783] Mor 2581 (18 June 1783)
URL: http://www.bailii.org/scot/cases/ScotCS/1783/Mor0602581-039.html Cite as:
[1783] Mor 2581
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. IV.
Who entitled to Propone Compensation and Retention.
Joseph Cauvin, v. Dr Joseph Robertson
Date: 18 June 1783 Case No. No 39.
The tenant of a house, belonging to a person who became bankrupt, found entitled to retain the rents, in payment of a debt due to himself, but not in payment of a bill due by the bankrupt to a company, of which the tenant was a partner, indorsed to him after the bankruptcy.
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Dr Robertson rented a house belonging to Louis Cauvin, who was debtor by bill to a company of which Dr Robertson was a partner; and who likewise owed a debt to the Doctor individually. Louis Cauvin died insolvent, and his son Joseph Cauvin entered heir to him cum beneficio inventarii. Dr Robertson who had paid to Louis Cauvin the rents due during his lifetime, continued to possess the house several years after his death, and in the mean time took an indorsation to himself alone of the aforesaid bill.
Joseph Cauvin, the heir cum beneficio, having demanded payment of the rents for these last-mentioned years, the Doctor claimed retention, first, of the debt due by Louis Cauvin to him as an individual; and,secondly, of the contents of the bill indorsed to him after the latter had died insolvent.
The Court seemed to be influenced by this consideration, that if the debtors of persons insolvent were to be permitted thus to avail themselves of assignations obtained from particular creditors, it would be easy to disappoint the remainder of them of that rateable and just payment of debt to which they are entitled.
The Lord Ordinary had ‘found Dr Robertson not entitled to retention of either debt.’
The Court altered his Lordship's interlocutor, so far as to find Dr Robertson entitled to retention of the debt originally due to him as an individual; while they adhered to it with regard to the bill indorsed after the bankruptcy. See Society.
Lord Ordinary, Alva.Act. Cha. Hay.Alt. Nairne.Clerk, Colquhoun.
Fol. Dic. v. 3. p. 145. Fac. Col. No. 107. p. 170.
